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08/18/97 MARY E. CLAUSEN AND ROBERT E. CLAUSEN v.

August 18, 1997

MARY E. CLAUSEN AND ROBERT E. CLAUSEN, PLAINTIFFS-APPELLANTS,
v.
RANDY L. CARROLL, ADM'R OF THE ESTATE OF JASON L. CARROLL, DECEASED, AND RYAN K. CHAPMAN, DEFENDANTS-APPELLEES. FRENCH TAYLOR, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF JENNIFER TAYLOR, DECEASED, PLAINTIFF-APPELLANT, V. RANDY L. CARROLL, ADM'R OF THE ESTATE OF JASON L. CARROLL, DECEASED, AND RYAN K. CHAPMAN, DEFENDANTS-APPELLEES. ALBERT KARL, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF JASON KARL, DECEASED, PLAINTIFF-APPELLANT, V. RANDY L. CARROLL, ADM'R OF THE ESTATE OF JASON L. CARROLL, DECEASED, AND RYAN K. CHAPMAN, DEFENDANTS-APPELLEE.



Appeal from the Circuit Court of De Kalb County. No. 95--L--35. Honorable John W. Countryman, Judge, Presiding. Appeal from the Circuit Court of De Kalb County. No. 95--L--65. Honorable John W. Countryman, Judge, Presiding. Appeal from the Circuit Court of De Kalb County. No. 95--L--64. Honorable John W. Countryman, Judge, Presiding.

Released for Publication September 23, 1997.

Presiding Justice Geiger delivered the opinion of the court. Inglis and McLAREN, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

These consolidated negligence actions arise from a two-vehicle automobile collision occurring on January 14, 1995, at Harmony Road in McHenry County, Riley Township. Jason Carroll was driving one of the vehicles and was killed in the accident. His passengers, Jennifer Taylor and Jason Karl, were also killed. The other vehicle involved in the collision was driven by Robert Clausen. Both he and his passenger, Mary Clausen, were seriously injured in the accident. During the collision, Carroll was allegedly engaged in a drag race with a third vehicle being driven by Ryan Chapman. The collision occurred when Carroll's vehicle crossed into the oncoming lane of traffic and struck Clausen's vehicle. Chapman's vehicle was not physically involved in the collision.

Mary Clausen, Robert Clausen, Albert Karl, individually and as special administrator of the estate of Jason Karl, deceased, and French Taylor, individually and as special administrator of the estate of Jennifer Taylor, deceased (collectively referred to as the plaintiffs), subsequently filed negligence actions against the estate of Jason Carroll (Carroll's estate) and against Ryan Chapman. Chapman's liability was predicated upon his participation in the drag race with Carroll during the collision. The trial court entered summary judgment on Chapman's behalf, finding that his conduct had not been the proximate cause of the accident. On appeal, the plaintiffs argue that the issue of causation was a factual determination which should have been resolved by a jury. We reverse and remand.

On March 1, 1995, Mary Clausen and Robert Clausen filed a four-count complaint against Chapman and Carroll's estate. The Clausens alleged that, at approximately 11 p.m., on January 14, 1995, Chapman and Carroll were engaged in a high-speed race on North State Road and Harmony Road in McHenry County, Riley Township. North State Road is a two-lane roadway which runs north and south and which terminates at a T-intersection with Harmony Road. A stop sign faces northbound traffic on North State Road at this intersection. Harmony Road is a two-lane roadway which runs east and west until a point where it curves northbound and becomes County Line Road. This curve is about one-half mile west from the T-intersection of North State Road and Harmony Road. County Line Road is a two-lane roadway which runs north and south until the point where it curves eastward to become Harmony Road.

The Clausens alleged that, immediately prior to the collision, they had been travelling southbound on County Line Road and then eastbound on Harmony Road. At the point where County Line Road turns eastbound to become Harmony Road, Carroll's vehicle, which had been travelling westbound on Harmony Road, allegedly crossed the eastbound lane and struck the Clausens' vehicle. The Clausens' complaint alleged that Carroll was negligent in one or more of the following ways: (1) that he drove his vehicle in a reckless manner; (2) that he drove his vehicle at a high rate of speed; and (3) that he improperly engaged in drag racing with another vehicle. The complaint also alleged that Chapman's conduct was a proximate cause of the accident. Specifically, the Clausens alleged that Chapman had acted negligently: (1) by driving a vehicle in competition with another vehicle on a public roadway; and (2) by challenging and encouraging another vehicle to engage in a high-speed race.

On April 24, 1995, Albert Karl, individually and as Special administrator of Jason Karl's estate, and French Taylor, individually and as special administrator of Jennifer Taylor's estate, filed wrongful death and survival actions against Carroll's estate and against Chapman. These complaints were predicated upon the same allegations of negligence as those contained in the Clausen complaint. Chapman and Carroll's estate subsequently filed answers to each of these complaints, denying any liability in connection with the collision.

On October 16, 1995, Chapman filed a motion to consolidate the three cases. On October 30, 1995, the trial court granted the motion and consolidated the cases for discovery purposes only.

On August 5, 1996, Chapman filed a motion for summary judgment in each of the cases pending against him. Chapman argued that summary judgment was appropriate because there was no evidence demonstrating that his conduct was the proximate cause of the collision between the Carroll and Clausen vehicles. In support of his motion, Chapman attached a copy of his deposition transcript as well as the deposition transcripts of Robert Clausen, Mary Clausen, Michael Hobson, Nicholas Scherer, and Michael Carter. The testimony contained in these depositions is summarized below.

Robert Clausen testified that, prior to the collision, he was travelling southbound on County Line Road. His wife, Mary Clausen, was a passenger in his vehicle at the time. As his vehicle reached the curve at County Line Road and Harmony Road, he saw headlights from a vehicle coming from his lower left field of vision. Almost immediately after he saw the headlights, an approaching vehicle collided into his car. At the time of the collision, his vehicle was entirely in the right-hand lane.

Mary Clausen testified that she was a passenger in a vehicle being operated by her husband at the time of the collision. She testified that the vehicle in which she was riding was in the right lane at the moment of impact. It was not until the moment of impact that she saw headlights from the other vehicle that was involved in the accident. Aside from the other vehicle, she did not see any other headlights or vehicles in the vicinity at the time of the collision.

Michael Hobson testified that, on the evening of the accident, he was driving northbound on North State Road out of Genoa. He testified that his vehicle was passed by a blue Mustang and a white Grand Prix. As the vehicles passed him, rocks were thrown up on his car, and he increased his speed in an attempt to catch up with them. As he observed the two cars in front of him, he noticed that they were "leap-frogging" (each vehicle repeatedly passing one another). He then observed the two vehicles slow down ...


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